Filed 9/3/14; pub. & mod. order 10/2/14 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE WAYNE EARL LARSON, Plaintiff and Appellant, G050081 v. (Super. Ct. No. RIC1216315) UHS OF RANCHO SPRINGS, INC., et al., O P I N I O N Defendants and Respondents. Appeal from judgments of the Superior Court of Riverside County, Matthew C. Perantoni and Gloria Trask, Judges. Affirmed. Law Office of Zulu Ali, Zulu Ali and Maleha Khan-Avila for Plaintiff and Appellant. Walker & Mann, Jeffrey A. Walker, Douglas K. Mann and Jean K. Bak for Defendant and Respondent Richard Shuman. Dummit, Buchholz & Trapp, Scott D. Buchholz, William R. Moore and Amanda N. McCarty for Defendant and Respondent UHS of Rancho Springs, Inc. * * * In this appeal, we must decide whether a plaintiff’s claims for battery and intentional infliction of emotional distress are based on a health care provider’s professional negligence and therefore subject to the one-year limitations period set forth in Code of Civil Procedure section 340.5.1 Plaintiff and appellant Wayne Earl Larson alleges defendant and respondent Richard Shuman, M.D., served as the anesthesiologist on Larson’s kidney stone surgery performed at defendant and respondent UHS of Rancho Springs, Inc.’s (UHS) hospital. In performing a preoperative checkup and administering the anesthesia, Larson alleges Shuman committed a battery and intentionally inflicted severe emotional distress by grabbing and twisting Larson’s arm, prying open his mouth, and lifting, pulling, and pushing on his face and head. The trial court sustained Shuman’s and UHS’s demurrers without leave to amend on the ground section 340.5’s one-year limitation period applied and barred Larson’s claims. Larson appeals, arguing the two-year limitations period generally applicable to personal injury claims governs because he alleged intentional tort claims, not claims for professional negligence. As explained below, we disagree with Larson’s contention and affirm the trial court’s judgment because we must look past the labels Larson uses and examine the specific conduct Larson alleged to determine which limitations period applies. Larson bases his lawsuit on Shuman’s conduct in providing professional health care by performing a preoperative checkup and administering anesthesia. Larson does not allege any other purpose for the challenged conduct. Because his claims constitute a challenge to how Shuman performed his professional services, Larson’s claims are based on professional negligence and barred by section 340.5’s one-year limitations period. 1 All statutory references are to the Code of Civil Procedure unless otherwise stated. 2 I FACTS AND PROCEDURAL HISTORY2 In September 2011, Larson filed an earlier action (Earlier Action) to recover for injuries he allegedly sustained while he was a patient at UHS’s hospital. Larson’s complaint in the Earlier Action asserted claims for medical negligence, professional negligence, battery, and intentional infliction of emotional distress against UHS and Shuman. The complaint alleged Larson admitted himself to UHS’s hospital to undergo surgery for kidney stones and Shuman was the anesthesiologist who “assist[ed]” with the surgery. Larson alleged Shuman “forcefully grabb[ed]” and “unnecessarily twisted” his arm during “his pre-operative check up,” “forcefully pried open [Larson’s] mouth without first asking him to open [it],” “abruptly lifted [Larson’s] chin,” “violently pushed [Larson’s] head back on the bed in an effort to put on [Larson’s] mask to administer the anesthesia,” and Shuman “again pressed strongly once more before [Larson] became unconscious.” Larson alleged when he awoke from kidney stone surgery, “his face was badly bruised, swollen, and sore.” Finally, Larson alleged he filed a complaint with UHS and also a police report based on the treatment he received from Shuman. In November 2011, Larson filed a first amended complaint in the Earlier Action. The amended pleading dropped the claims for medical negligence and professional negligence, but alleged claims for assault, battery, and intentional infliction of emotional distress. The pleading continued to allege Shuman served as the anesthesiologist for Larson’s surgery. Larson also continued to allege that, “[p]rior to the 2 Because this appeal follows the sustaining of a demurrer, we summarize the underlying facts as alleged in the complaint and include additional facts subject to judicial notice. (Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 456 (Rosen).) 3 surgical procedure,” Shuman “twisted [Larson’s] arm to check up on him and pried open his mouth”; Shuman “lifted [Larson’s] chin in an abrupt manner, hurting [Larson’s] neck and chin”; Shuman “pushed [Larson’s] head against the bed to the point where his neck started hurting”; “Shuman’s hand continually pressed hard on [Larson’s] upper chin and lip area”; and Shuman “pushed [Larson’s] face again before [Larson] became unconscious.” As a consequence, Larson “woke up with bruises on his face, and a swollen upper lip.” Finally, Larson alleged he filed a complaint with UHS and a police report in November 2010. Shuman and UHS separately demurred to the first amended complaint in the Earlier Action. The trial court sustained both demurrers with leave to amend on the ground Larson failed to allege sufficient facts to show he did not consent to Shuman’s conduct because the alleged injuries occurred as Shuman provided medical care. Rather than amend his pleading, however, Larson voluntarily dismissed the Earlier Action without prejudice in March 2012. Eight months later Larson filed this action. The complaint alleges claims for battery and intentional infliction of emotional distress against Shuman and UHS, but omits many of the specific facts Larson alleged in the Earlier Action. The claims against Shuman simply allege he “forcefully grabbed [Larson’s] arm, pried open [his] mouth, violently punched, lifted and grabbed [Larson’s] chin, face and mouth,” and Larson “suffered pain, bruising, swelling, soreness and emotional trauma and distress.” The claims against UHS include the same allegations. Larson also alleged Shuman “was acting as an agent and/or employee of [UHS] and within the scope of his agency and/or employment in that the harmful conduct occurred during preparation for [Larson’s] medical procedure.” Shuman and UHS demurred and moved to strike portions of Larson’s complaint on the grounds the claims were time-barred, Larson failed to allege sufficient facts to state a cause of action, and Larson failed to obtain a court order authorizing him 4 to seek punitive damages against a health care provider. In support, Shuman and UHS asked the court to judicially notice Larson’s two complaints, the demurrers, a notice of ruling, and the request for dismissal filed in the Earlier Action. The trial court granted the requests for judicial notice, sustained the demurrers without leave to amend on the ground the statute of limitations barred Larson’s claims, and granted the motions to strike without leave to amend. After the trial court entered two judgments dismissing his claims against Shuman and UHS, Larson timely appealed. II DISCUSSION A. Standard of Review “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) “We review [Larson’s] complaint de novo to determine whether it alleged facts sufficient to state a cause of action under any legal theory. [Citation.] In doing so, we look past the form of the pleading to its substance and ignore any erroneous or confusing labels [Larson] attached. [Citation.] ‘“‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]’ . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]”’ [Citation.]” (Rosen, supra, 193 Cal.App.4th at p. 458.) 5 “‘When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect. .’ [Citation.] The abuse of discretion standard governs our review of that question. [Citation.] ‘The plaintiff bears the burden of proving there is a reasonable possibility of amendment.’ [Citation.] To satisfy that burden, the plaintiff ‘“must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the “applicable substantive law” [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] . [¶] The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]’ [Citation.]” (Rosen, supra, 193 Cal.App.4th at p. 458.) B. The Trial Court Properly Considered Larson’s Complaints From the Earlier Action Larson contends the trial court erred by considering the complaints he filed in the Earlier Action when it ruled on Shuman’s and UHS’s demurrers.